Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 180 - 199)

TUESDAY 27 JANUARY 1998

MR MICHAEL DAVIES AND MR DEREK RIPPENGAL CB QC

Sir Patrick Cormack

  180. Is there a case for saying that either House should deal with its recalcitrant Members and if those Members are then suspended it automatically should follow that all privilege is lifted with the suspension and then Members should be subject to the ordinary criminal law? Would that not be a sensible way of dealing with it?
  (Mr Davies) But at the outset the House would have to take a decision which I suppose might prejudice any criminal trial that followed. I imagine that it would also leave the problem of Article IX of the Bill of Rights to be resolved because the suspended Member would presumably wish to make reference to the proceedings in Parliament.

Lord Wigoder

  181. As we are on paragraph 24 of the memorandum, might I raise a question that has been increasingly troubling me as proceedings have developed. It appears to be regarded as axiomatic, certainly by the Home Secretary and I think possibly in various other observations we have had, that if we go down the route of making corruption a criminal offence, triable primarily in the courts as far as Members of Parliament are concerned, this necessarily involves an amendment of some sort to Article IX. Could I just ask you to think about that for the moment as to whether that is necessarily so, because it seems to me that in relation to Members of Parliament there are I suppose four categories of corruption that might arise. There is a corruption of a person who happens to be a Member of Parliament but has nothing to do with his political or parliamentary activities. He might be a director of a company and might be corrupt in that capacity. That clearly would be tried in a criminal court if we went down the criminal route. There is the corruption of a Member of Parliament that does not involve proceedings in Parliament as laid down by Article IX and it might possibly require some consideration by this Committee as to whether we should assist the courts by defining proceedings in Parliament rather more closely than it is defined, but that form of corruption would be a form of political corruption still triable in the criminal courts even though Article IX were in existence because it would not be proceedings in Parliament. There is a third category where it would involve proceedings in Parliament but only in a very limited sense in order to show that a question was asked or a speech was made without comment or discussion of the matter, where there is I think some authority to suggest that that is permissible, despite the terms of Article IX, in proceedings in the courts. Then there is the final category which is obviously the most difficult one, where corruption of a Member of Parliament does involve Article IX head on because it does relate to something which clearly was due to proceedings in Parliament. If one had a position in which the criminal courts had jurisdiction for the offence of bribery as we in due course suggest it should be defined, then all cases of alleged bribery would go first to the criminal courts. In relation to the first three categories the trial would go through. In relation to the fourth category where Article IX appeared to be on the face of it clearly involved, there would be discussion of a criminal court and a trial before it started probably and objection to the jurisdiction on that basis. It might I suppose take place later in the trial very occasionally and there would be a certain waste of money involved, I can see that, but where the objection was taken and the judge held it to be well founded, he would decline jurisdiction and the case would then be sent to the relevant House of Parliament for them to proceed with the matter as part of their ordinary disciplinary proceedings. Given that there are only probably going to be a minute number of cases involved where a Member of Parliament is alleged to have been corrupt, it follows that the number of cases in the fourth category, where Article IX might be held to apply, would be even more minute. Given that many of us have a perhaps illogical and emotional attachment to Article IX and would rather not see it amended again if we could avoid doing so, would there be a possibility that we could proceed down the route of making corruption a criminal offence and giving the criminal courts the prime jurisdiction while still retaining Article IX in its present form?
  (Mr Davies) I imagine that that is possible but it would mean referring the matter back in certain cases to one or other of the two Houses, and I personally have doubts as to whether either House can properly discharge the trial of that Member, particularly since the offerer of the bribe or the inducement was a member of the public and the House would find it even harder to deal adequately with that person. I accept that the incidence of corruption in the fourth category is likely to be fairly remote, particularly after the present spate of publicity. Members of both Houses are going to be exceptionally careful about their future behaviour. But it does seem to me that neither House is properly equipped to conduct a criminal trial of this sort. Take the case of opposed Private Bills relating to works, of five or six years ago. Those took the nature of planning inquiries and Members, particularly of the House of Commons, became more and more reluctant to undertake that sort of work. The result was the Transport and Works Act 1992 which transferred the jurisdiction on the development of bridges and railways and the like to the planning system. I suspect equally that Members of either House would be very reluctant to embark on what could be a lengthy trial of an issue.

Chairman

  182. One of the points made by the Home Secretary last week was to the effect that the public perception in this area really matters more than the actual number of cases which might arise in the fourth of Lord Wigoder's categories. Have you any comment to make on that?
  (Mr Davies) Yes, I think that it is a matter of public perception and, as Mr Rippengal said at the outset of this meeting, it is a matter of hard choices. If Parliament wants to be seen as squeaky clean, I think it has to accept that some of its jurisdiction will have to be transferred to the courts.

Sir Patrick Cormack

  183. It is not quite as simple as that, is it? There are very profound constitutional implications if we go down this route. I am not saying we should not go down this route. I truthfully have not made up my mind yet. Not surprisingly, I err on the conservative side, I am rather against changing things, but there are profound constitutional implications and to change something because of public perception seems to me not a terribly good reason for making this major change. I am attracted very much by what Lord Wigoder says and I also feel that it is possible (and I welcome your comments on this) to deal with members of the public. Members of the public after all can in other circumstances be found guilty of contempt of Parliament and can be punished by the Speaker in the House of Commons putting on the black cap and delivering the sentence. I am not necessarily suggesting that we extend that procedure but it can be done, can it not?
  (Mr Davies) Yes, of course. I am not an expert on the powers of the House of Commons to punish for contempt, and I entirely accept the point you have made that public perception may not be the best reason for changing a hallowed constitutional principle, but the Bill of Rights was enacted 300 years ago to deal with very different constitutional circumstances. One has to consider therefore whether in the current climate of public opinion its full rigour is still appropriate.

Mr Williams

  184. It is difficult enough for the Standards and Privileges Committee to deal with a Member of Parliament objectively. Inevitably political considerations are in people's minds, particularly the nearer you are to an election. Secondly, any recommendations made by the Privileges Committee itself have then to be endorsed by a free vote in the House of Commons and the House has turned recommendations down in the past. Bribery is a two-way process: to bribe there has to be a briber, but, with respect to Sir Patrick Cormack, the Privileges Committee has no meaningful power over a member of the public. I think for example about the recent Hamilton case. It was difficult enough dealing with the Hamilton side of it. If we then had to deal with the Fayed side of it as well, I think it would have been virtually impossible for us to fulfil that task, particularly given the fact that he would have been coming with his crop of lawyers and Hamilton with his and so on. We would have been absolutely floundering there. I think the more practical consideration is that it does not work very well, as I said last week. It works all right in minor cases because it is rough justice. Suspension in our House, you see, includes loss of pay, so effectively an £850 a week fine is imposed as well as suspension from the House of Commons. That does not apply in the House of Lords so there is not the double sanction there. Having served on both Privileges Committees, much as I would like to preserve the powers of this House (and I want to as much as we reasonably can) I think we are deceiving ourselves if we for one moment think that what we offer in any way compares with what a court of law offers in terms of a guarantee of even-handed justice.
  (Mr Davies) Mr Williams, I think that is encapsulated in the last sentence of paragraph 24 of the paper which says that it is unrealistic to suppose that the House could deal at all with the person offering the bribe.

  Mr Williams: That is right.

Mr Tyler

  185. Would a member of the general public have any recourse elsewhere if he or she felt that they had suffered as a result of the inquiry of one or other of the Houses into such a case? I am thinking of the European Commission on Human Rights for example.
  (Mr Rippengal) One cannot rule out that possibility, I suppose. They certainly would not have any in the courts in the United Kingdom.

Chairman

  186. This has arisen, has it not, in relation to the Maltese Assembly?
  (Mr Rippengal) Yes.

  187. And it has a bearing, does it not, on the adequacy and fairness of any procedure adopted by the House in this sort of field, if the person who is in effect making a private complaint can then sit as a Member of the House adjudicating on the particular area of which he is complaining and be part of the punishment?
  (Mr Rippengal) That was the precise case in Malta.

  Mr Michie: Obviously we have not got a structure in place at the moment on corruption and how it should be dealt with. Can you envisage a situation where we do have a set of rules and at that point it becomes a matter for the courts rather than for the House, but unless the position is absolutely clear we could have both Houses arguing for months in a Privileges Committee whether in fact it is a matter for the courts or the House?

Mr Williams

  188. Yes. With the helpful division that Lord Wigoder gave us of the court categories, this is the reverse mechanism for the courts, which is where we act as a trigger for going into the court system rather than the court system acting as an almost mandatory trigger, automatically sending it back to an inadequate system here. We can deal with people like the two Members who got fined two pounds each for a question; we could deal with those reasonably within the House and be seen to have dealt with them. But with something bigger, and particularly where it involves a member of the public as a co-conspirator, the Committee could refer that to the court system. Inevitably, if a briber cannot be dealt with here, equally he cannot be dealt with in the public courts, in the general court system, unless he has the ability to call the Member of Parliament he allegedly bribed to give evidence. It would seem to me that this is conceivably a very useful development of the categorisation we have had and might take us forward quite a bit. We deal with the first three automatically but have a trigger mechanism on the other side of the court/House of Commons divide.
  (Mr Davies) The difficulty that I am in and I think that Mr Rippengal is in is that we do not have much experience of these matters because the House of Lords has not been, as far as we know, affected in this way. We have not had meetings of the Committee for Privileges in recent times and I am not certain that we are the best people to advise about the issues of which Members of the House of Commons, particularly those who have served on the Standards and Privileges Committee, have had very recent experience.

Lord Mayhew of Twysden

  189. Would you be able to envisage the House exercising a trigger mechanism in Lord Wigoder's fourth category in a way which was sufficiently comprehensive to enable the full character of a case to come out without doing it in a way which prejudiced the future trial in a criminal court?
  (Mr Rippengal) One of the problems is that we are talking of a hard core of really serious corruption cases. It seems to me that you need the full panoply of police powers, the dawn raids on people's documents and so on, before you know whether you are in that situation. Really, in a sense I cannot see how the parliamentary mechanism is necessarily going to recognise this situation.

  Sir Patrick Cormack: Taking up Mr Williams' point, could it not recognise it in this way. There are many offences which would indeed be offences, such as failure to declare and so on, which Parliament can properly police and deal with. You then come to what we are calling the fourth category. As I understand it, what Mr Williams was saying was, let Parliament be your trigger, and what would happen then, if I understand him correctly, is that the Privileges and Standards Committee, or whatever body was established for the purpose, would say, "This is too complex"—not necessarily that it is too serious—"for us to deal with it and therefore in this particular case we are recommending to the House the lifting of such privileges or immunities as might apply so that the courts can deal with it." I hope I am not misinterpreting what Mr Williams said.

  Mr Williams: No. What we are doing is not declaring anyone guilty or innocent. It is rather like a reference to the DPP. What you are saying is that this is a case that we are incapable of investigating adequately, if it needs access to private papers outside and that sort of thing, so the House can declare its own incompetence if you like in dealing with it. That could be the way of dealing with it without a presumption of guilt. We just say, "We cannot investigate this adequately", such as I think should perhaps have happened in the Hamilton case where there was a need to get access to Fayed papers as well as Hamilton papers. Then we say, "We hand it over to the normal system." We refer it to the DPP perhaps or get the DPP to take the appropriate step.

Sir Patrick Cormack

  190. And in so doing we would have to waive privilege. And of course Mr Hamilton himself did get the House, unwisely in my view, to allow him to have certain immunities, did he not, so there is a precedent. In this case you would preserve Article IX more or less intact.
  (Mr Davies) The difficulty is that, as a member of the Committee said, it is a political decision whether the Committee for Privileges makes a recommendation to the House of Commons. Then the House of Commons has got to vote on whether to accede to that recommendation and therefore there is no guarantee that the matter will be handed over.

Mr Williams

  191. There is no guarantee but it is less political in a sense because it is not either party making a declaration of guilt. It is the Committee making a declaration of competence on the ability to investigate. That is a matter of fact. In the Hamilton case clearly there were things we could not do that a court could do. When we had to decide on whether to go on and act in an appellate role, there was disagreement. I started off saying we should do that. I eventually came round the other way because I recognised that all we could do would be a complete re-run of what the Commissioner would do. We had no more powers than the Commissioner had. We would have had the same questions. We had no extra information, no extra sources, no extra access to documentation or anything of that sort, and then it seemed to me that we were possibly entering into a barren exercise, so the Committee was not able to do what a court would have done, and that was a matter of observable fact.
  (Mr Davies) I think Mr Williams has greater experience of this issue than either of us does and I am not certain that we are competent to give an answer on that point. If it is a matter of just waiving the competence of the House of Commons to deal with an issue, I suppose that is possible, but you are still in the difficulty of being subject to the political process to some extent and the courts not really having the right to make a charge against the man.

Lord Mayhew of Twysden

  192. Can I ask you to help me to pursue this interesting development a little bit further. Let us suppose we have a case where the relevant Committee in this House decides, "It is too difficult; we wish to hand it over." If it is handed over to the DPP, which was suggested, that would really put the DPP in the position of what in the French system is called a "juge d'instruction"; we would hand it over to a magistrate who is the investigator and he goes and investigates it and at the end of the day he decides whether there is enough to charge or not. That would be a novel position for the Director to be in, would it not? Exclusively the Director takes charge of a case after a charge has been laid. It is true that the Director is often consulted by the police as to whether there is enough evidence, but there is a rather strong element of "juge d'instruction" in that event. It would have been totally handed over to the police for investigation.
  (Mr Rippengal) Yes, it would have been.

  Mr Williams: With respect, there has been a charge made. A charge has been made to the Privileges Committee and the Privileges Committee in this scenario considered that it needed further investigation. It is a different type of charge.

  Sir Patrick Cormack: It is not a criminal charge.

  Lord Mayhew of Twysden: In the context of our discussion would it not have to be a charge of offending against some new criminal privilege which the Home Secretary will have introduced and Parliament will have passed?

  Chairman: I think this is in danger of becoming a deliberation rather than questions to the witnesses. Lord Mayhew, is there anything you would like to ask Mr Davies or Mr Rippengal on the point?

Lord Mayhew of Twysden

  193. The Home Secretary said in his modest way, "I would be very foolish if I were to introduce my Bill without knowing what this Committee is going to say about the question of bribery of Members of either House." Supposing this Committee were to say to itself, "There is obviously a public will for tougher bribery provisions and there is a public will that Members of Parliament shall not be altogether excluded from them at any rate, even if they are excluded at all." Would it be your view that there is any inherent reason why Members of the House of Lords, in whatever legislation they had passed there, should be dealt with differently from whatever legislation might apply to the House of Commons?
  (Mr Davies) No, I do not think there is. I think they should both be subject to the same provisions. Whether there has to be a slightly different subsection dealing with the House of Lords because of the fact that there is some doubt whether they are holders of public office is a matter for the lawyers concerned. I do not think I am competent to answer that. But they should certainly be subject to the same process as the Members of the House of Commons, yes.

  194. To the extent that there are different standards at the moment in required conduct in each House, is there any reason why either House should not be able to have as it were supplementary jurisdiction of a disciplinary kind for matters which fell outside the criminal provision but which nonetheless they considered to be improper?
  (Mr Davies) Yes.

  195. That would be perfectly feasible in your view?
  (Mr Davies) Yes.

  196. Just to complete my train of thought, we asked the Home Secretary last time whether there was not a distinction that could be practically made between the tightly drawn category of proceedings in Parliament and other matters which fall within the duties of a Member of Parliament but do not take place within that type of category. Would you see any objection to that categorisation of separation being drawn in the House of Lords if it were going to be drawn in the House of Commons. In other words to have a clause that were designed to get a Member of the House of Lords to behave in a particular way in the Chamber would be within the type of category, but if it was not germane to the exercise of his duties here it would be outside it? Would that be a possible distinction in your view?
  (Mr Davies) I think that the difficulty is that Members of the House of Lords do not have really any other role except as Members of the House of Lords and in the proceedings of the House. They are in a different category from a Member of the House of Commons.

  197. That would not be a difficulty. It would make something rather easier, which would be unusual.
  (Mr Rippengal) I think it is suggested in the Commons paper that one way of proceeding for Members of the Commons would be for an offence of corruption to relate to their activities as Members in relation to their constituents and so on, but not in relation to proceedings in Parliament, but that is a distinction our memorandum points out is not feasible in the Lords because a peer's functions as a Member of the House entirely relate to what he does in Parliament. He does not strictly speaking have any function outside at all.

  Lord Merlyn-Rees: One minute we are talking about bribery and the next minute we are talking about corruption. What is the difference? Is it either/or, or does it matter? Does one carry both?

  Lord Mayhew of Twysden: One is an example of the other, is it not?

  Lord Merlyn-Rees: It has been said today that the number of cases we will have will be very small. I am finding it very difficult to think of an example of bribery that really counted in the House of Commons and in the House of Lords in particular. I find it very difficult to think of a bribery case. It may look like bribery, and it may be fooling somebody, but real bribery, I find difficult to conceive it.

Mr Michie

  198. Would you agree that if we could find a fourth category or whatever, a trigger point, it would have to be very carefully drafted, otherwise the perception outside Parliament would be that the reference to a court to deal with the matter meant that there was an element of guilt, even before the Crown prosecution stage, because in the minds of the public there is no smoke without fire.
  (Mr Rippengal) Yes, I think there will be a hard core of really serious cases that are presumably the cases which would be the subject of Lord Wigoder's fourth category. I am not quite sure whether Lord Wigoder was envisaging an offence which covers a whole series of matters, but where you only reach the point of proceedings if the House had said yes, or whether you were envisaging an offence which was so finely tuned that it would cut out your earlier categories.

  Lord Wigoder: I do not claim to have been putting forward a carefully thought-out proposal. It was a thought which had been niggling me and I wanted to get it off my chest.

  Mr Williams: Very helpful.

  Lord Wigoder: I had envisaged that the fourth category of case, which would have been a case of bribery or corruption which did clearly involve proceedings of Parliament, would begin not in the Houses of Parliament, but it would begin with the Director of Public Prosecutions and he would collect the evidence and he would present the case in due course, if he thought there was a case, to the criminal court and it would then be for the criminal court, if they felt that Article IX clearly did apply, to refer the matter back to the House of Commons. That was how I envisaged it. I envisaged the trigger working in the opposite way. I do want to make it clear that I am not seeking for a moment to put forward what I would regard as a coherent solution to all of our problems.

  Lord Merlyn-Rees: I am most interested in what you say. Could you give us an example of bribery by a Member of Parliament in either House that the DPP would investigate?

  Lord Wigoder: I would have thought, without referring to any particular person or any particular scenario, the offer of a substantial sum of money to ask a particular question for a particular interest of the person who was offering the sum of money would, on the face of it, be a prima facie case of attempted bribery or bribery which the Director of Public Prosecutions would think it appropriate to investigate.

  Sir Patrick Cormack: Or the allegation that regular substantial payments were illicitly made.

Mr Tyler

  199. You have suggested on a number of occasions that because you have not had recent experience in the House of Lords this somehow reduces the value of your contribution. I take precisely the opposite view. I suspect that Commons Members and indeed our officers in the House have been proceeding rather too much ad hominem about the recent cases and I have in mind the situation where it was far less clear cut, where, for example, during the examination of the Committee to which Alan Williams refers a lot more came out, that apparently simple cases started very straightforward, but a lot more came out. I am worried about the trigger that can only be triggered half-way through an investigation with inadequate investigatory and interrogation powers. That is why I very much prefer Lord Wigoder's suggestion that the trigger should be external when it is thought it is proper for Article IX to apply because then you do have the full panoply of the investigatory and interrogation powers of the criminal law. I think we are all in danger, because we are all under the shadow of recent experience in the Commons, of thinking that it is always going to be straightforward to identify which is the fourth case and I suspect very often that it will not be. I am asking you really from your rather more objective point of view, when you have not lived under the shadow of this investigation over recent months, whether you do not think perhaps that Lord Wigoder's suggestion that an external trigger rather than an internal trigger is more likely to be effective?
  (Mr Rippengal) I must confess, I do not really see how it works. Once the thing gets into the criminal courts, it seems to me inevitable that Article IX is going to be overridden. They are going to have to ask the Member what he was up to when he said so and so and was he not speaking with one voice, but in fact achieving another object. He is going to have to be questioned about what his motives were, what sort of spin he was putting on things and so on. This is totally contrary to what we have called the wider aspect of Article IX and I do not see how the criminal proceedings could even get under way without breach of Article IX.


 
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